Ullman v. St. Louis Fair Ass'n.

• Citation: 167 Mo. 273,66 S.W. 949
• Parties: ULLMAN et al. v. ST. LOUIS FAIR ASS'N.
• Decision Date: 25 February 1902
• Court: United States State Supreme Court of Missouri

66 S.W. 949

167 Mo. 273

ULLMAN et al. v. ST. LOUIS FAIR ASS'N.

Supreme Court of Missouri, Division No. 2.

February 25, 1902.

GAMING CONTRACT — RACE TRACK — BOOKMAKING AND POOL-SELLING — SALE OF PRIVILEGE — PARTIAL EXECUTION — RECOVERY OF PARTIAL PAYMENTS — CONTRACT — CONSTRUCTION — ABANDONMENT — APPORTIONMENT OF PURCHASE MONEY.

1. In consideration of a specified sum, part cash and the balance in installments, defendant, by written agreement, sold plaintiffs the "exclusive betting and bookmaking privileges, including also auction, official pool-selling," etc., on its race track, for a certain period. Plaintiffs made the cash payment, and enjoyed for a short time the privileges specified, in the meantime paying several installments. They then abandoned the contract on the ground that defendant interfered with the privileges sold them, and sought to have the purchase money apportioned to the time during which they had enjoyed the privileges, and to recover the excess paid by them above such apportioned amount. Held, that the contract was not a lease, but a sale, and hence the purchase money paid could not be apportioned as sought by plaintiffs.

2. The contract amounted to a sale of the privilege of gambling with the public who patronized defendant's race track, and hence the court would not aid either party in the enforcement thereof.

3. A contract for the sale of betting privileges at a race track having been executed to the extent of the partial payment of the purchase money and partial enjoyment of the illegal privileges sold, the rule that money paid in advance for illegal purposes may be recovered back where the contract is wholly executory does not apply, and the purchaser cannot recover what he has paid in the partial execution of the contract.

Appeal from St. Louis circuit court; Franklin Ferris, Judge.

Action by Alexander Ullman and others against the St. Louis Fair Association. From a judgment in favor of defendant, plaintiffs appeal. Affirmed.

The defendant, on and prior to May 1, 1896, was a corporation, and was the owner and in possession of a race track, with stands and grounds for spectators, a club house, and betting ring, with stalls and conveniences for "pool-selling" and "bookmaking," all inclosed, to which the public were admitted during the racing season on payment of an admission fee. On the 1st day of May, 1896, the defendant, through its officers, made and entered into the following contract with the firm of Alex. Ullman & Co., composed of Alexander Ullman and Edward W. Sinclair: "This agreement, made and entered into this first day of May, 1896, by and between the St. Louis Fair Association, a corporation created and existing under the laws of the state of Missouri, party of the first part, and Messrs. Alex. Ullman & Company, of St. Louis, Missouri, party of the second part, witnesseth: That said party of the first part does hereby sell and convey to the said party of the second part the exclusive betting and bookmaking privileges, including also auction, official pool-selling, water, calling, and form-book privileges, on its race track in the city of St. Louis during the ensuing race meeting, which will begin on Saturday, May 9, 1896, Sundays excepted, for forty-nine (49) days, until and including the 4th day of July, 1896. Said meeting is to be conducted in every feature and particularly in accordance with and subject to the rules and regulations of the American Turf Congress, of which it is a member. It is agreed and understood that the party of the second part will allow any reputable bookmaker so desiring to operate on said track under the regulations enforced by the party of the second part. For the above-enumerated exclusive betting, official pool-selling, water, calling, and form-book privileges on said track during said meeting the said party of the second party hereby covenants and agrees to pay to the said party of the first part the sum of ninety thousand dollars ($90,000), payable in installments, as follows, to wit: Eighteen thousand dollars in hand, paid on entering into this agreement, the receipt of which is hereby acknowledged. The further sum of seventy-two thousand ($72,000) dollars is to be paid on the dates and in the sums hereinafter immediately set forth, to wit: On Saturday, May 9, 1896, nine thousand dollars ($9,000); on Thursday, May 14, 1896, nine thousand dollars ($9,000); on Thursday, May 21, 1896, nine thousand dollars ($9,000); on Thursday, May 28, 1896, nine thousand dollars ($9,000); on Thursday, June 4, 1896, nine thousand dollars ($9,000); on Thursday, June 11, 1896, nine thousand dollars ($9,000); on Thursday, June 18, 1896, nine thousand dollars ($9,000); on Thursday, June 25, 1896, four thousand five hundred dollars ($4,500); on Thursday, July 2, 1896, four thousand five hundred dollars ($4,500). The said party of the first part agrees to furnish said party of the second part the necessary tickets of admission to said track for all employés engaged by said party of the second part, or required by him to properly conduct and operate the auction mutual system of betting of said track during said race meeting. And the party of the first part also agrees to furnish said party of the second part five (5) daily tickets for admission to said course for each betting book employed in recording and making bets on said course, or, at the election of the said party of the first part, to allow a credit of five ($5) dollars per day for each book employed on said course in lieu of said five tickets or daily admissions." Ullman & Co. paid the cash payment of $18,000 stipulated, and began and enjoyed the rights thereby secured, and paid the first two weekly installments, to wit, $9,000, on May 9th and a like sum on May 14th. Plaintiffs did not themselves make wagers, or directly and personally conduct the betting on races run at defendant's track, but farmed out the betting monopolies to professional operators, known in race-track parlance as "bookmakers," who each paid plaintiffs for the privilege to make wagers on the races with the attending public $100 a day, which seems to have been the customary price on that track for several years previous to that season. From plaintiff Ullman's testimony it appears the business was very dull, and only about one-half of the usual number of bookmakers applied for the privilege, and as plaintiffs' means of making themselves whole on their contract with defendant depended on the bookmakers, plaintiffs determined to increase the assessment upon the bookmakers to make up for the loss in numbers, and gave and posted a notice to that effect, and thereupon the following correspondence ensued:

"St. Louis, May 16, 1896. Messrs. Alex. Ullman & Co., City — Gentlemen: We are advised that you have posted the following notice, to wit: `Bookmakers wishing to draw in for the next three days can do so by paying their pro rata of $1,600 per day for five races in case books average less 16. Closes at 1:45 p. m.' Your contract with this association does not justify you in making such a rule. It is not in accord with custom, and is unreasonable. I am instructed to advise you that it is the view of this association that any reputable bookmaker shall be permitted for the consideration of $100 per day, as usual, to sell pools, subject to such reasonable rules as to mode of selling and such as are customary as you may prescribe. If you persist in the course which the association has condemned and thinks unwarranted, it will exercise the authority to grant to reputable bookmakers the right to conduct business at the association grounds without your consent. [Signed] Very truly yours, St. Louis Fair Association. C. C. Maffit, President."

"St. Louis, Mo., May 16, 1896. St. Louis Fair Association, C. C. Maffit, Esq. President, City — Gentlemen: We beg leave to acknowledge receipt of your communication of even date, relative to the bookmaking privilege at the St. Louis Fair Association race meeting of 1896, and in reply permit us to say that we are merely pursuing our rights under the contract between your association and ourselves, and we must insist on our right to prescribe the terms upon which any reputable bookmaker shall do business in the ring during the life of said contract. We deny the right of the association to allow any one to carry on business in the ring without our consent, and beg leave to notify your association that we will resist to the utmost any attempt on the part of your association to interfere with us in this or any other particular, or with our conduct under the terms of said contract. Respectfully, Alex. Ullman & Co."

On the 18th of May, 1896, plaintiffs filed their application for a temporary injunction against defendant to enjoin it from placing or permitting bookmakers on said track without consent of plaintiffs, which was subsequently denied by the circuit court. Plaintiffs continued to exercise their privileges of selling rights to make books and wagers on said track until May 23, 1896, but refused on May 21, 1896, to pay the installment of $9,000 due by their contract on that date. On May 23, 1896, they abandoned the further enjoyment of their privileges under their contract, and afterwards on the 10th of September, 1896, began this action, in which, after pleading said written contract, and alleging that defendant sold to plaintiffs the exclusive betting and bookmaking privileges mentioned therein, they made the following averments: "Plaintiffs state that they had in all things complied with the terms and conditions of said contract on their part to be performed, and that they had paid to defendant such sums as fell due under said contract, to wit, $18,000 on May 1, 1896, $9,000 on May 9, 1896, and $9,000 on May 14, 1896, and were ready and...